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Kitzmiller v. Dover Area School District

Trial transcript: Day 11 (October 18), PM Session, Part 2


THE COURT: Back to Mr. Rothschild on cross examination.


Q Professor Behe, right before the break you said that the findings accumulated over 140 years that support the contention that Darwinian processes could explain complex molecular systems total a number of zero, correct?

A I'll -- I think I did, yes.

Q Okay. And that's a proposition you stand by.

A Well, again, you have to look at the papers. And what I meant by that is ones which fully explain how random mutation and natural selection could build a complex system; yes, there are no such explanations.

Q Zero papers.

A I don't think I said zero papers, perhaps I did, but there are zero explanations.

Q And zero is the same number of articles in peer-reviewed scientific journals that argue for the intelligent design of complex molecular systems?

A The number of peer-reviewed papers in scientific journals which show that life is composed of molecular machinery that exhibits the purposeful arrangement of parts in detail on term, you know, many many many thousands. There are -- I think there are just one or two that mention intelligent design by name.

Q That argue for the intelligent design of complex molecular systems in peer-reviewed scientific journals?

A No, I don't think -- now that you mention it, I think that I was thinking of something else.

Q And there are zero articles in peer-reviewed scientific journals arguing for the irreducible complexity of complex molecular systems?

A There are none that use that phrase, but as I indicated in my direct testimony, that I regard my paper with Professor David Snoke as to be arguing for the irreducible complexity of things such as complex protein binding sites.

Q So one, according to your count?

A Could you repeat the question, I am afraid --

Q I asked you, is it correct that there are zero articles in peer-reviewed scientific journals arguing for the irreducible complexity of complex molecular systems?

A I would count some other papers as, as impinging on that, on that topic, but I don't -- they certainly don't use the term irreducible complexity.

MR. ROTHSCHILD: Matt, could you pull up Professor Behe's expert report, exhibit 602, and go to pages nine and ten and highlight the five claims identified by Ernst Mayr.


Q This is something you discussed in your direct testimony?

A Yes, it looks like.

Q These are the five claims for evolution identified by Ernst Mayr?

A That's right, evolution as such, common descent, multiplication of species, gradualism and natural selection.

Q If we could go to page 11 of your report and highlight the underscored text.

You say, "Intelligent design theory focuses exclusively on the proposed mechanism of how complex biological structures arose." Correct?

A That is correct, yes.

Q That's consistent with your testimony today.

A Yes, it is.

Q Now, the claim that -- if we could go back to Ernst Mayr's list and highlight -- just focus on the common descent. You claim that intelligent design does not take a position on common descent, which is defined here as, "The theory that every group of organisms descended from a common ancestor and that all groups of organisms, including animals, plants, and microorganisms, ultimately go back to a single origin of life on earth." Correct?

A I'm sorry, I lost track of the question. What was the question?

Q That's how common descent is described here, correct?

A Yes, this is Ernst Mayr's definition of common descent, may I add.

Q And you're saying intelligent design doesn't make a claim about that proposition.

A That's correct.

Q Now, if one were to argue for special creation of humans, that would be inconsistent with that proposition, correct?

A I'm afraid I don't have a real good understanding of what you mean by the term "special creation."

Q Do you have an understanding -- you used the term "special creation" in response to Mr. Muise's question. When you answered those questions, what did you understand "special creation" to mean?

A Well, from that I meant the -- I understood the ex nihilo, that is creation appearance from absolutely nothing of some organism.

Q So if that kind of creation occurred -- if one was arguing for special creation of humans, that would be inconsistent with the proposition of common descent described up there?

A If one were arguing for the ex nihilo creation of humans, that would be inconsistent with common descent.

Q And when you say ex nihilo, you're using that synonymously with special creation?

A That's the way I understand the term.

Q Okay. And then Dr. Mayr also has the claim of gradualism, which says, "According to this theory, evolutionary change takes place through the gradual change of populations and not by the sudden, saltational, production of new individuals that represent a new type."

And it's your testimony that intelligent design does not properly make a claim about that proposition in the theory of evolution?

A That's correct. It could either -- it could be consistent with a gradualistic or a nongradualistic fossil -- or nongradualistic history of life. It is not a claim that impinges on intelligent design, although it may in fact impinge on theories that purport to explain life without intelligence.

Q Let's go back to Pandas. If you could open up the book and go to page 98. This is just to prove we're not completely wed to pages 99 to 100, though we may return to them.

If you could go down to the first column on page 98, under the heading "Sudden Appearance or Face Value Interpretation," it states: "The fossil record shows that most organisms remain essentially unchanged. The conclusion to be drawn is that major groups of plants and animals have co-existed on the earth independent of each other in their origins, which must be explained in some way other than Darwinian evolution."

Independent of each other in their origins, that is the opposite of going back to a single origin of life on earth, isn't it?

A That is -- in my view, that's an attempt to simply explain what we see in the fossil record, which I understand from the quotations that were read to me by Mr. Muise, that some well-known paleontologists have essentially agreed with, to my thinking. Also --

Q Sorry.

A I'm sorry. But so it -- so it seems to me that the text here is trying to draw a conclusion that is more consistent with the actual fossil record that -- well, the record that they perceive to be the fossil record, without imposing a theoretical construct on top of it.

Q It's drawing a conclusion from the fossil record, isn't it, Professor Behe, it's not just describing the fossil record?

A That's right, it says conclusion to be drawn, yes.

Q And the conclusion is, separate origins of plants and animals, various types -- groups of plants and animals, correct?

A Yes. But if I might point out, this is in a section of the book entitled "Meaning of Gaps in the Fossil Record," which actually begins on page 96, which I discussed in my direct testimony. And this is one of a number of different interpretations which attempt to explain what is described as a noncontinuous or apparently noncontinuous record. The first one is that there is an imperfect record, that is, we haven't got all the fossils, or all the fossils didn't fossilize -- or all organisms didn't fossilize. The second that Pandas mentions is incomplete search. The thirds that it mentions is jerky process, which is an inartful way of saying punctuated equillibrium. And the fourth one is the -- is the -- is what they're concluding that in fact the fossil record may indicate that these organisms did appear as they are.

Q And that last interpretation is inconsistent with the description of common descent in Ernst Mayr's description, correct?

A Yes, that's right.

Q And it's called the Face Value Interpretation, correct?

A That's correct. And let me just repeat just for context, that Pandas says -- if I could find the data that -- or the description, and I can't find it right here -- they say that scientists should not accept the face value interpretation of the fossil record, without also exploring the other possibilities, and even then only if the evidence continues to support it.

So the way I read the textbook is that they're trying to tell students that this seems to be what the record shows, and we should look for other explanations, and we might draw this conclusion tentatively, but our tentative conclusion is always subject to revision if new data comes out.

Q Okay. Let's go on in the page that I pointed you to, page 98. Go to the second column, and the second full paragraph. And it says, "The intelligent design hypothesis is in agreement with the face value interpretation and accepts the gaps as a generally true reflection of biology and natural history."

Nothing tentative about that, is there, Professor Behe?

A No, I think it's quite tentative in the context of what I just read. It says the intelligent design hypothesis is in agreement with. The way I'm reading it is that it is not in conflict with the face value interpretation because intelligent design doesn't speak to common descent. It only says that we can detect design in some physical features of life. So it does not conflict with intelligent design -- to the intelligent design hypothesis, as it might with one of the tenants of Darwin s theory as written by Ernst Mayr, gradualism, and perhaps common descent as well.

So the way I see that is in fact they're saying, well, there is no conflict between intelligent design and the face value -- or the face value interpretation.

Q It doesn't say no conflict, does it, Professor Behe, it says in agreement?

A That's correct. But in agreement can mean that -- can mean no conflict. It means that there is no reason to rule out intelligent design because of this aspect of the fossil record, although other theories might have difficulty with it.

Q It doesn't say intelligent design is also in agreement with the jerky process or punctuated equilibrium as you describe it, does it?

A I would have to read those sections again more closely.

Q Take a minute.

A Well, from scanning them it does not look like it says that. But I do not draw any grand conclusions from that. I would just say that, you know, this is a correct statement that the intelligent design hypothesis is in agreement with the face value interpretation.

I would also add that it's in agreement with all of the other -- all of the other topics listed under this section as well.

Q That's your interpretation.

A Yes, it is.

Q Okay. Now having critically reviewed the book?

A No, that was my understanding from, from the beginning.

Q Let's go back a little further. Let's go down a little further in that paragraph. It says, "A growing number of scientists who study the fossil record are concluding that the structural differences between the major types of organisms reflect life as it was for that era.

"This view proposes that only the long-held expectations of Darwinian theory cause us to refer to the inbetween areas as gaps. If this is so, the major different groups of living organisms do not have a common ancestry. Such a conclusion is more consistent with currently known fossil data than any of the evolutionary models."

It's taking a side, isn't it, Professor Behe? It's taking a side for the face value interpretation.

A It certainly is not. I mean, it's certainly proposing something that a student normally doesn't read about in their biology textbook. But it says that this is what the data is consistent with, and it's -- in their opinion it's more consistent with this data than with other -- I'm sorry, with this model than with other models.

And earlier, or perhaps later, I've lost the page, it advises students that we should hold our views tentatively, and if new data turn up which cause -- should cause us to revise our estimation of our views, then we should do so. So I see no inconsistency between this -- I do not see this as advocating, I see it as a description.

Q Professor Behe, you described earlier you have nine children?

A I do, yes.

Q Some of them have been through the ninth grade?

A Five boys, four girls.

Q Congratulations.

A Thank you.

Q Some of them have been through the ninth grade, I'm assuming?

A Yes, they have.

Q Okay. Honestly, any ninth grader reading this is going to understand this book to be taking the position that common ancestry, common descent is wrong, isn't that right?

A I -- well, I disagree. I do not think so.

I think they are careful to present the ordinary interpretation, or the common interpretation. They're careful to say that is the common interpretation. They're careful to say that there are multiple -- multiple explanations for the data within the common interpretation. Then they say that, well, there's this other interpretation that may be consistent with the data too; we should only hold this interpretation if it continues to be consistent with the data.

I think a ninth grader reading this would say to themselves, wow, you know, look at the different ways we can look at the data. Huh, let's decide what the data is and what our interpretation is.

I do not view this as, as something that would cause a ninth grader to jump up and say ah-hah, there must not have been common descent. I view it as something that would cause a ninth grader to sit down and say, let's think about this data, let's see if we can really -- if our views are as strongly supported as we thought.

Q Well, let's go back to page 99 and 100. Okay?

"Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinctive features already intact: Fish with fins and scales, birds with feathers, beaks and wings."

That's the definitional statement in this section of the book. That's not consistent with common ancestry, it's directly opposed to it, isn't it, Professor Behe?

A Well, as I tried to make clear in my direct testimony, I don't think this was well written. I think it's tentatively phrased. It says "some scientists," and certainly I do not think that that is a definition of intelligent design.

And what I see this paragraph trying to say is that we see these things in the fossil record as some eminent paleontologists apparently agreed, and that if we hold this view, this face value view, then we do not have to necessarily come up with some strained explanation, or some explanation which seems ad hoc, perhaps that's the way it happened, because intelligent design can accommodate a fossil record like this.

Q And the way it happened is inconsistent with common ancestry, birds, fish, separate, right?

A Give me a second to read this, please.

No, I disagree. It just means abruptly as seen in the fossil record. Even if one thinks it were through intelligent agency, that -- that event might have been through common descent, through some ancestors in the past giving rise to these things, but that it happened so rapidly that it did not leave traces in the fossil record.

And might I add that that is oftentimes an interpretation given to the fossil record by paleontologists, such as, say, Stephen Jay Gould and Niles Eldredge. They said that apparently, and if you look at the fossil record -- from my nonexpert understanding -- that the theory of -- punctuated equillibrium says that things change and then suddenly -- or things stay the same and then suddenly change. And so that in the fossil record you just see rather large changes. But they certainly do not disagree with common ancestry, and I don't think this is arguing for it either.

Q Professor Behe, it's one thing to say fossils appeared abruptly, it's another to say life began abruptly, isn't it?

A I disagree. In the context of this book, when it's talking about fossils, when it's talking about the fossil record, when it's talking about all the problems that one has in getting fossils, that fossils -- if I can find the correct page -- that there might be an imperfect record due to the fact that fossils form imperfectly, that there might be incomplete search and so on, that this conveys to me, and I think to any -- any ninth grader reading it, that this is the data we have from the fossil records. So that when we say these things began in the fossil -- abruptly, that means that we perceive them to begin in the fossil record.

Q That's a pretty charitable interpretation, Professor Behe, but let me ask you this question. Abrupt appearance, you would agree with me that's inconsistent with gradual? Gradual and abrupt, you're not going to tell me those are the same?

A That's correct. But I d like to say that a number of scientists, in my understanding, challenge the gradual evolution and the gradual tenant of Darwin's theory. One person is a lady named Lynn Margulis, who is a professor of biology at the University of Massachusetts-Amherst, and a member in the National Academy of Sciences. Let me just briefly explain to make this point. I don't intend to take much time.

She proposed that things that we call mitochondria, which occur in eukaryotic cells, which are cells with nucleus, which include us and everything except bacteria, they occurred when a pre-eukaryotic cell essentially enveloped a smaller bacterium, and the two essentially developed a symbiotic relationship.

And her view of this, and other people's view of it, is that this is in fact a saltational event; nongradual development of an entirely new life form. So gradualism is not the -- or abruptness is not the opposite of common descent, and -- well, it's not the opposite of common descent.

Q Lynn Margulis is not being taught at Dover, but intelligent design is, and it's your assertion that intelligent design makes no claim about gradualism, but this passage we ve read here, it's completely inconsistent with the concept of gradualism. Abrupt appearance or -- life beginning abruptly.

A Can I see where -- could you read the --

MR. MUISE: Objection, the question mischaracterized the evidence. He says intelligent design is being taught in the class. And I don't believe there's any evidence that that is the case.

MR. ROTHSCHILD: I think that's an issue of dispute.

THE COURT: Restate your objection.

MR. MUISE: I believe he prefaced his question that intelligent design is being taught at the Dover -- in the Dover schools, and I don't believe there's evidence that intelligent design is being taught.

THE COURT: Well, I understand. This is a bench trial. You say it's taught; you say it's not taught. I'll take that for what it's worth. The objection is overruled. You can answer the question.

THE WITNESS: I'm sorry, could you restate the question?


Q It says there, "Intelligent design means that various forms of life began abruptly." That's the opposite -- that is directly contrasting the claim of gradualism made by Ernst Mayr, correct?

A The -- how shall I phrase this? The sentence there I read as saying that intelligent design can be consistent with; that the fact that the fossil records seems to have forms of life appearing abruptly, while it might cause problems for Darwinism, it does not cause problems for intelligent design, because intelligent design does not speak to how fast or how slow such things happen.

And so I see that as saying essentially an intelligent design proponent can take this data at face value and does not necessarily have to have secondary hypotheses to try to explain it.

Q That's how you read the -- something that starts, "intelligent design means."

A Well, again, as I said in my direct testimony, I don't think this was written very well, but I think the sense of that sentence is not hard to discern.

Q All right. Why don't we continue on the subject of common descent. Could you go to page Roman numeral, small Roman numeral ten. This is in the introduction.

A I'm sorry, I don't have a small Roman numeral ten in my book.

MR. ROTHSCHILD: May I approach the witness, Your Honor?

THE COURT: You may.

THE WITNESS: Thank you.


Q In the last full paragraph of the page it says, "Of Pandas and People is not intended to be a balanced treatment by itself. We have given a favorable case for intelligent design and raised reasonable doubt about natural descent." Correct?

A Yes, that's right.

Q And if you d go to page 33.

MR. MUISE: Your Honor, may I just for purposes of the record, that was actually page nine and not page ten.

MR. ROTHSCHILD: Did I say Roman numeral ten? I apologize. Roman numeral nine thank you.

THE COURT: The record is corrected.

MR. ROTHSCHILD: Thank you.


Q And on page 33 under the heading, "A Living Mosaic," it says, "The theories of intelligent design and natural descent both have an explanation for why living things share common structures."

A Yes, I see that.

Q So there it's actually saying intelligent design is a separate theory from natural descent, correct?

A Well, the way I read that phrase is that they're contrasting intelligent design with unintelligent processes, which I think they, again, just use the phrase natural descent as trying to indicate that. But I do not read it as opposing the theory of common descent.

Q If you d go to page 127.

A Yes.

Q And if you could go to the middle of the second column, the paragraph headed, "Among Organisms."

A I'm sorry, where is that?

Q The second full paragraph.

A Oh thank you, yes.

Q Starts "Among Organisms," and going to the second sentence it says, "Design proponents have a realistic and more cautious approach to the use of homologies. They regard organisms which show great structural differences, such as starfish and chimpanzees, as having no common ancestry." Correct.

A Yes, that's what it says, but again, I read that as the fact that while other theories such as Darwinisms might make a commitment to common ancestry, a theory of intelligent design can live with what the data shows on that respect, because a theory of intelligent design does not speak to that; it just speaks to the effects of intelligence. So I see this as an accommodating sentence rather than as something that is required.

Q And if you could go to page 156.

A Yes.

Q And if you could look at the first column, the -- under the second indented paragraph where it says, "This is precisely."

A Yes.

Q "This is precisely why a book that questions the Darwinian notion of common descent is so necessary."

A Yes, I see that. But --

Q Okay, so --

A Again, if I can just comment that, again, I see this as telling students or presenting to students that it seems that much of the data in the fossil record, as the writers of Pandas perceive it, is being fit into a theoretical framework which is dictated by Darwinian theory. And that if you do not invoke that theory and you look at the data in a different way, then intelligent design can live with whatever the results of that different look shows.

Q In your view intelligent design doesn't have to take any position on common descent?

A Yes.

Q Okay. But here you say, Behe says, intelligent design is making no claim about common descent; and this book says, intelligent design questions the Darwinian notion of common descent. Those are the same thing to you?

A I'm sorry, could you just repeat that, please?

Q Behe says, intelligent design makes no claim about common descent.

A Yes.

Q Pandas says, intelligent design questions the Darwinian notion of common descent. Those are the same thing to you?

A I see this as part of an argument. The -- as I try to make clear in my testimony, intelligent design is seen in the purposeful arrangement of parts, and that is the positive argument for intelligent design. But also, a part of the task of somebody who holds that view is to try to answer other views which claim to -- which claim to explain what intelligent design purports to explain.

And one of those is to show where the other theory has problems. And I view this as part of that kind of negative argument that, that while -- that while -- that while intelligent design can live with what data we have, this seems to be a problem for the current theory, as a number of paleontologists have said. And they ve tried to -- they ve tried to fix it up, and they propose these explanations, and perhaps they're right, but maybe that's not correct. And if it's not correct, well then this other theory, this rival theory is -- is -- has some difficulties, but that intelligent design does not. So I see it as part of a negative argument against a rival to intelligent design.

Q And it's a negative argument against the part of that argument called common descent, correct?

A That's correct, just as my argument was an argument against natural selection. And when people make claims for natural selection, I have to show why that is a poor explanation for what we see.

Q So I think we're in agreement, in Pandas, intelligent design is making a claim about common descent in the same way you claim to be making a claim about natural selection?

A No, I think that's incorrect. I think the claim of natural selection goes more directly to the question of the purposeful arrangement of parts.

The idea of common descent does not go, in my view, so directly to the question of the purposeful arrangement of parts. But nonetheless, as a part of Darwinian theory, it's required much more for Darwinian theory. Nonetheless, that would make that idea less plausible, and therefore that's part of the negative argument.

Q Okay. So Pandas is making an argument against common descent, but you say intelligent design is not?

A Pandas is making a negative argument against common descent to show the plausibility to greater -- more greatly enhance the plausibility of the alternative of intelligent design, that's correct?

Q Thank you. Now, can we go back to page 11 of the report and highlight again the underscored text.

So this is back to the claim that you say intelligent design makes, "Intelligent design theory focuses exclusively on the proposed mechanism of how complex biological structures arose."

Please describe the mechanism that intelligent design proposes for how complex biological structures arose.

A Well, the word "mechanism" can be used in many ways. In this I was -- and when I was referring to intelligent design, I meant that we can perceive that in the process by which a complex biological structure arose, we can infer that intelligence was involved in it's origin.

Much like if I might refer back to the Big Bang theory, the Big Bang theory proposes no mechanism for how the universe arose, but nonetheless it infers that, whatever the mechanism, it came by some sort of explosive process.

So there are many other questions that these theories leave unaddressed, but they do posit some aspect of the cause which is very useful to have and which is supported by the data.

Q So intelligent design is about cause?

A I'm sorry, could you say that again?

Q I just want to get it clear here, intelligent design is about cause?

A Well, cause is a broad word, and when you re trying to explain how something came about, you can say it came about for a variety of reasons. But intelligent design is one reason or one aspect or one cause to explain how the purposeful arrangement of parts that we see did come about.

Q Back to my original question. What is the mechanism that intelligent design proposes?

A And I wonder, could -- am I permitted to know what I replied to your question the first time?

Q I don't think I got a reply, so I'm asking you, you ve made this claim here, "Intelligent design theory focuses exclusively on the proposed mechanism of how complex biological structures arose." And I want to know what is the mechanism that intelligent design proposes for how complex biological structures arose?

A Again, it does not propose a mechanism in the sense of a step-by-step description of how those structures arose. But it can infer that in the mechanism, in the process by which these structures arose, an intelligent cause was involved.

Q But it does not propose an actual mechanism?

A Again, the word "mechanism" -- the word "mechanism" can be used broadly, but no, I would not say that there was a mechanism. I would say we have an aspect of the history of the structure.

Q So when you wrote in your report that "Intelligent design theory focuses exclusively on the proposed mechanism," you actually meant to say intelligent design says nothing about the mechanism of how complex biological structures arose.

A No, I certainly didn't mean to say that. I meant to say what I said in response to that last question, that while we don't know a step-by-step description of how something arose, nonetheless we can infer some very important facts about what was involved in the process, namely, that intelligence was involved in the process.

And let me go back one more time to the Big Bang theory. Again, we don't have a mechanism for the Big Bang, but we can infer some important events about what happened, and that was that it happened in some explosive manner, it happened a distinct time ago and so on.

So additionally, I might say, that it also focuses on other proposed mechanisms that purport to explain the purposeful arrangement of parts. And so I think it is quite accurate to say that that's exactly where intelligent design focuses.

Q So it actually -- it focuses on other proposed mechanisms, by that you mean natural selection, don't you?

A No, just a natural selection, complexity theory and so on. But certainly the most widely accepted, and then the one that you would have to convince most people -- or explain to most people is not well supported is the one which is the currently accepted explanation of natural selection.

Q Okay. And so in terms of mechanism, it's just a criticism of Darwinian evolution's mechanism and not a positive description of the mechanism?

A No, I disagree. I say that while, again, while it does not give you a step-by-step description of how such things occurred, it does tell you something very important about the cause or the way in which these structures arose, and that was through the actions of an intelligent cause.

Q So, Professor Behe, why don't we go to your deposition and see how you answered the questions then, okay?

A Okay.

Q Could you look at page 179 of your deposition.

A Yes.

Q I asked you, "What is the proposed mechanism of how complex biological structures arose according to intelligent design theory?"

A Yes.

Q And you answered, "Intelligent design does not propose a mechanism, it simply tries to support the conclusion that intelligent activity was involved in producing the structures."

A Yes. And that language, I think, is completely consistent with what I was trying to say here today, that it does not tell you step by step how something was proposed -- or how something was produced, but nonetheless it says something very very important about the origin of the structure, and that is that intelligent activity was involved in producing it.

Q And then further down the page at line 24 I asked you, "In terms of the mechanism, it's just a criticism of Darwinian evolution's mechanism and not a positive description of a mechanism." And what did you answer, Professor Behe?

A I said "that's correct." But again, I think this is completely consistent with what I just said. Again, it does not propose a step-by-step description, but it -- but it proposes or it accounts for some very important features of what was involved in it's origin, and that is intelligent activity.

Q You have, throughout your testimony over the past two days, criticized the concept of natural selection quite a bit, correct, or the claims made about natural selection?

A Well, I think you have to be careful. I think natural selection is real, and certainly explains a lot of things. And what it's -- what it can explain, it explains well. And like I said, it does account for a number of features of life.

So I would not say I'm criticizing natural selection. I think that many people infer that natural selection has -- can explain things that I don't think it can, and so I've criticized those arguments and those extrapolations.

Q But you obviously agree it is a valid phenomenon, it explains --

A Yes, of course. Yes, sure.

Q Including -- it explains things at the biological level, at the organism level?

A Yes, it certainly does.

Q And it also explains things at the biochemical level?

A That's correct too, yes.

Q For example, antifreeze proteins, that's an example of natural selection operating at the biochemical level, correct?

A If by antifreeze protein you mean the particular antifreeze protein that was discovered in antarctic notothenioid fish a few years ago in which a gene for trypsinogen, the five prime region for that gene was found next to a coding region for a simpler one, yes, that's right, I do agree with that.

Q You can read my mind.

And that -- that evolution through natural selection was demonstrated partly by experiment, partly by explanation, correct?

A That's correct, yes.

Q And you gave us a nice illustration of hemoglobin yesterday.?

A Yes, I showed a slide of hemoglobin.

Q Pretty complicated structure?

A It certainly is, yes.

Q And that is another thing where -- another biochemical system that you acknowledge can be explained through natural processes?

A No, you have to be very very careful there. In my book I discuss the example of hemoglobin, and I said -- I discussed it as an example of something that may be amenable to Darwinian explanation. And I was careful to say that if you start at the starting point of a protein similar to what's called myoglobin, which is a single chain protein, and you probably recall yesterday that hemoglobin has four chains stuck together; if you have this single chain protein, myoglobin, which essentially has the very similar structure to hemoglobin, if you start with that, the question is, what does it take to form an aggregate of that structure with the properties of hemoglobin.

So I said, for that segment, starting with myoglobin, going to hemoglobin, that I did not see any impediment for natural selection to explain that. But I did not -- there certainly is no literature. There is no experiment. There is no detailed description of how that actually could happen. So I said that for purposes of argument I think that, you know, we can -- we can certainly say for now that perhaps Darwinian mechanisms can explain that.

Q Now, before we go in detail into your argument from irreducible complexity, I want to confirm some other aspects of how you understand intelligent design.

It does not identify who the designer is, correct?

A That's correct. Let me just clarify that. I'm talking about the scientific argument for intelligent design based on physical data and logic, yes.

Q You believe it's God, but it's not part of your scientific argument?

A That's correct.

Q It does not describe how the design occurred.

A I'm sorry?

Q Intelligent design does not describe how the design occurred.

A That's correct, just like the Big Bang theory does not describe what caused the Big Bang.

Q Does not identify when the design occurred.

A That is correct.

Q In fact, intelligent design takes no position on the age of the earth or when biological life began.

A That's correct.

Q But think it was -- the earth as billions of years old or 10,000 years old.

A That's correct.

Q It says nothing about what the designer s abilities are.

A Other than saying that the designer had the ability to make the design that is under consideration, that's correct.

Q It sounds pretty tautological, Professor Behe.

A No, I don't think so at all. When you see a structure, even in our everyday world, just think about archaeological structures such as a Sphinx or Easter Island or some such thing, one thing you can say is that these -- two things you can say, is that these things were designed, and that the intelligent agent or intelligent agents who designed them had the ability to design them. So I don't think that's tautological at all.

Q Archeology is a science that you find very similar to the design argument of biochemical systems?

A Well, archeology is a science, and design argument is an argument. But I think in archeology some of the reasoning they employ -- I'm not an archeologist, of course, but I understand that in some of the reasoning they employ is similar to their reasoning that intelligent design proponents such as myself might employ.

Q But it is your position that we know the designer's abilities?

A I'm sorry, could you say that again?

Q It is your position that we know the designer s abilities?

A Well, as I think I said in response to the question, we know the designer had the ability to make the design. So, but beyond that, we would be extrapolating beyond the evidence, so we can't say more than that.

Q And we know nothing about the designer s limitations.

A Well, we have to infer what we have from the data, and the data tell us that a designer can make a certain object. It does not say what the designer might not do. In our everyday world somebody who makes some simple object might be able to make a more complex one or so on.

Q Intelligent design says nothing about the intelligent designer's motivations?

A The only statement it makes about that is that the designer had the motivation to make the structure that is designed.

Q How can intelligent design possibly make that statement, Professor Behe?

A I don't understand your question.

Q How can it possibly say anything about the intelligent designer's motives without knowing anything about who the intelligent designer is?

A Well, I think it's -- that's pretty easy. For example, let's go back to the SETI project, Search for Extraterrestrial Intelligence. Suppose that astronomers in that project one day discerned a signal coming in from outer space that they discerned to be of intelligent origin, maybe even it carried a message or something like that exotic. How would they know the motives of whatever sent that? They might not know them, but nonetheless, they could -- as a matter of fact, the whole project is based on the assumption that they would be able to detect the message without knowing the motives of whatever sent it, without knowing it's abilities beyond the ability to send the message, and so on. So I don't think that's a problem whatsoever.

Q Let me try and cut this short. It's fair to say that in the case of the intelligent designer and biological or biochemical life, we know nothing about it's ability or limitations except from what we conclude from the system that was designed?

A Yes. A scientific theory makes -- draws it's conclusions from the physical evidence. So the fact that intelligent design draws conclusions from the physical evidence is completely consistent with what any good scientific theory could do.

Q Well, I mean, let's take your analogy of human design. I want a nice car, right?

A I believe that.

Q And you could look at a car and say Eric made that because he wants a nice car, right?

A I'm sorry?

Q Eric made the car because he wants a nice car, right? That would be an inference about my motives based just on seeing the car in my garage, or that I bought the car?

A No, I disagree. What you would say from looking at the car in your garage is that this car was designed, and if it was in your garage and it turned out that somebody was staying at your house that was not you and that was their car, well, then that's consistent with the conclusion of intelligent design. The extrapolation to who the designer was or who purchased the car or anything like that is unjustified by the data. If it was, you know -- well, I could make other examples, but I think the point is clear.

Q And just to be -- just to wrap this point up, we know nothing about the intelligent designer's abilities or limitations except for what we can conclude from the specific system or object that we're observing?

A Since intelligent design is a scientific theory, it has to draw it's conclusions from physical data. So yes, that's how we determine whatever we know about the design and whatever inferences we make to the cause of the design.

Q And similarly, we know nothing about the intelligent designer's motives or needs or desires except for what we can conclude from the specific system that we're observing?

A Yes. Let me just reiterate that, that in fact a scientific theory depends on physical data. It can't depend on anything else. And so of course it has to draw whatever inferences it can from the physical data that it has available.

Q Okay, and in this case that's just the system we're look at, the bacterial flagellum?

A Well, if you're considering the bacterial flagellum, then yes, that would be it, you could consider other things as well.

Q Now, you ve told this Court that intelligent design does not involve supernatural action, correct?

A That's correct. I -- no, I said that it -- it's -- intelligent design is a scientific theory that focuses exclusively on physical data and logical inferences. And so since any scientific theory does not infer from beyond the data, then we cannot say anything about whether some structure was produced by supernatural means.

Q Could you open Darwin's Black Box, which is plaintiff's exhibit 647.

A What page?

Q I'm sorry. Page 193.

A 193, thank you.

MR. ROTHSCHILD: Matt, could you highlight on page 193, the first paragraph.


Q Could you read that paragraph, Professor Behe?

A Can I read from the book here?

Q Yes, please.

A Okay. "There is an elephant in the roomful of scientists who are trying to explain the development of life. The elephant is labeled intelligent design. To a person who does not feel obliged to restrict his search to unintelligent causes, the straightforward conclusion is that many biochemical systems were designed. They were designed not by the laws of nature, not by chance and necessity, rather, they were planned. The designer knew what the systems would look like when they were completed, then took steps to bring the systems about. Life on earth at it's most fundamental level, in it's most critical components, is the product of intelligent activity."

Q They were designed not by the laws of nature, correct, Professor Behe?

A That is correct.

Q Professor Behe, if you could turn to exhibit 718, which is Reply to My Critics.

MR. ROTHSCHILD: And, Your Honor, we'll have it up on the screen, but if it's easier to look at paper, I have a copy.

THE COURT: No, if you're going to put it up, that's fine.


Q And Professor Behe, it's fair to say that this is one of your most significant published works on the subject of intelligent design since Darwin's Black Box?

A Well, this is where I, as the title implies, I try to address criticisms that have been raised against the intelligent design proposal.

Q One of your more important pieces of work on this subject?

A I consider it to be, yes.

Q Could you turn to page 696 of that article.

A Yes.

MR. ROTHSCHILD: And, Matt, if you could go to the, I guess the first full paragraph, which begins "In such a view," and highlight the passage that begins "By intelligent design" midway through the page.


Q And here you say, "By intelligent design I mean to imply design beyond the simple laws of nature. That is, taking the laws of nature as given, are there other reasons for concluding that life and it's component systems have been intentionally arranged."

And going further down the page you say, "In my book, and in this article, whenever I refer to intelligent design, I mean this stronger sense of design-beyond-laws."

And those are natural laws, correct, Professor Behe?

A Yes. And if you read that sentence that you skipped over there, it says, By intelligent design I mean -- I'm sorry, let me see -- I kind of got lost here. I mean to design -- "I mean to imply design beyond the simple laws of nature. That is, taking the laws of nature as given, are there other reasons for concluding that life and it's component systems have been intentionally arranged, just as there are reasons beyond the laws of nature for concluding a mousetrap was designed."

What I was intending by that passage was something much less grand than the design of the laws of nature, to which I was contrasting my position. I was likening it to the design that is involved in simple mechanical objects such as the mousetrap. And as I explained in my testimony, that is exactly the basis for how we detect design, when we perceive the purposeful arrangement of parts.

So that is the sense of design in which I meant. It's actually a more modest sense of design than design of the laws of nature.

Q Mechanical design of a mousetrap is beyond the laws of nature, Professor Behe?

A It requires intelligent activity. It's beyond unintelligent -- the operation of unintelligent laws. There is no law of nature that explains a mousetrap.

Q They are designed by natural actors, correct?

A That's correct, but how they act is not described by any law that I know of, and I have -- I have never read any law that describes how a mousetrap comes about.

Q Well, why don't we go on to page 700. If you could highlight the question that Professor Behe is asking on this page. "Is it plausible that the designer is a natural entity?" in the first full paragraph.

That is the question you ask. "Is it plausible that the designer is a natural entity?"

MR. ROTHSCHILD: And then if, Matt, if you could actually go to the next two full paragraphs and highlight those.


Q And you say, "The problem is the following. Currently we have knowledge of only one type of natural intelligent designer even remotely capable of conceiving such structures as are found in the cell, and that is a human. Our intelligence depends critically on physical structures in the brain which are irreducibly complex. Extrapolating from this sample of one. . . " -- that's humans, correct?

A Yes, that's right.

Q ". . . it may be that all possible natural designers require irreducibly complex structures which themselves were designed. If so, then at some point a supernatural designer must get into the picture.

"I myself find this line of reasoning persuasive. In my estimation, although possible in a broadly permissive sense, it is not plausible that the original intelligent agent is a natural entity. The chemistry and physics that we do know weigh heavily against it. If natural intelligence depends on physical organization, then the organization seems likely to have to be enormously complex and stable over reasonable periods of time. While simpler systems may perform the tasks that irreducibly complex systems perform a terrestrial life, they would likely perform them more slowly and less efficiently, so that the complexity required for intelligence would not ultimately be achieved. Thus, in my judgment it is implausible that the designer is a natural entity."

You don't absolutely rule it out, but you're not taking it very seriously, are you?

A Well, I've said that quite a number of times. I think I said that at the beginning of my testimony yesterday, that I think in fact from -- from other perspectives, that the designer is in fact God. But if you turn back to page 699, there's a section entitled, "Is it possible that the designer is a natural entity?" And I won't quote from it, but I come to the conclusion there that sure it's possible that it is, but I do not -- I myself do not find it plausible.

Let me again liken this to the Big Bang theory. Is it possible that there was some event in nature that caused such a thing? Yes, it's possible. We know of no such event, we don't -- you know, we haven't known of such an event since the Big Bang theory was first proposed something like 75 years ago; but it's certainly possible. It's also possible that it wasn t.

And the distinction that I was trying to make throughout my testimony is that when we use scientific reasoning, and when we constrict ourselves to physical evidence and logical reasoning, we can only go so far. We can say we don't have a natural -- we don't have an explanation for this event right now. We cannot -- and the history of science shows this time and time again, we cannot say that because we don't have a natural or an explanation for a certain event now, that we won't have one in the future. Intelligent design I think is in the same category as the Big Bang on that point.

Q And I know you're fond of the Big Bang, but let's be clear, you're not an expert in physics, correct?

A That is correct.

Q And nor an expert in astrophysics?

A That's right.

Q Okay. And you're making a pretty scientific argument here, physics, chemistry, they pretty much rule out a natural designer; that's what you're trying, right?

A No --

Q Not absolutely, but makes it pretty implausible?

A That's what implausible means. Yes, but again, the conclusion from this evidence does not lead one to an explanation beyond nature.

With this I was also relying on my other -- on considerations other than scientific ones, from philosophical, theological and historical beliefs. So again, arguing from scientific data only takes you so far. It takes you to the point of the fact that we do not have an explanation for this event right now. But to go beyond that requires a reasoning beyond just scientific reasoning.

Q So in Darwin's Black Box you said beyond nature, in this article you said beyond nature, but that's just your theological hat?

A Well, as my discussion of John Maddox s editorial from yesterday Down with the Big Bang which occurred in Nature, and my discussion of Arthur Eddington's writings, and my discussion of Walter Nernst's comments, many people saw in the Big Bang implications for theology and philosophy and things beyond nature.

So I think that -- that nonetheless we would all agree that the Big Bang is a scientific theory in the same way intelligent design, in my view, is a scientific theory, even if somebody like John Maddox sees for this theory that it has implications beyond science.

Q Now, you ve said in your testimony today and yesterday you personally believe the designer is God.

A Yes.

Q And in this article in fact you say for purposes of the discussion I'm going to assume the supernatural entity is God, right?

A Yes.

MR. ROTHSCHILD: And, Matt, if you could turn to page 705 of the article. If you could highlight the top paragraph, until the sixth line.

And you write here, "What if the existence of God is in dispute or is denied? So far I have assumed the existence of God. But what if the existence of God is denied at the outset, or is in dispute? Is the plausibility of the argument to design affected? As a matter of my own experience the answer is clearly yes, the argument is less plausible to those for whom God s existence is in question, and is much less plausible for those who deny God's existence."

It's a God friendly theory, isn't it, Professor Behe?

A Let me respond in a couple of ways to that. First, let me clarify for context that this is a journal called Biology and Philosophy. So not only am I speaking about scientific matters here, but I'm also talking about nonscientific matters here in an academic forum. Academics embraces more than just science. This is an academic forum which also embraces philosophy, and so I addressed philosophical issues as well.

And again, my statement as written is certainly correct. And it's happened time -- many times in science, and, again, I'll just refer back to John Maddox's article Down With the Big Bang. He didn't like the Big Bang theory. And it wasn t because the data were inconsistent with it, it's because it was philosophically unacceptable. Walter Nernst hated the idea of a beginning to the universe. It was unscientific. So -- and other people have said similar things.

So it's clearly true that people make decisions even about a scientific theory, based not only on the science itself, but what they perceive as other ramifications of the theory.

But I argue, I've argued a number of places, that it's the proper role of a scientist to leave aside those other considerations as much as possible and focus simply on the scientific data.

Q That's what you try to do as a scientist?

A Yes, I do.

Q The year you wrote Darwin's Black Box was also the year that the Center for the Renewal of Science and Culture at the Discovery Institute was founded, correct, 1996?

A Is that -- I'm fuzzy on the date of the establishment of the Center for Renewal, yeah.

Q You were one of the Center's fellows from the beginning, correct?

A Yes, that's correct. I was asked to join by Bruce Chapman, who was the president of the Discovery Institute.

Q And you ve remained a fellow since that time, correct?

A Yes, I'm still a fellow.

Q And even before the Discovery Institute was founded, you participated in the Pajaro Dunes conference?

A Yes, that was a private conference which was organized by a man named Phillip Johnson.

Q And in addition to Mr. Johnson, yourself, Stephen Meyer was there?

A Yes, Steve Meyer was there too.

Q William Dembski?

A He was there too.

Q Paul Nelson?

A Yep.

Q Dean Kenyon?

A Him too.

Q Okay, and you all discussed your ideas?

A Yes, that was the purpose of the conference, to talk with each other and to bounce ideas off of each other and so on.

Q And all of the individuals I've mentioned, including yourself, became fellows or officers of the Discovery Institute's Center for Renewal of Science and Culture, correct?

A I'm not sure. I'll take your word for it, though.

Q Okay. And you have no reason to doubt that?

A I don t, no.

Q And you accept funding from the Center for Renewal of Science and Culture?

A As -- over the past years, and there was a time about -- a period of three years, about eight years ago, up to about five years ago, where I was given a grant by the Discovery Institute -- well, actually I wasn't given a grant, the Discovery Institute gave a sum of approximately 8,000 to $10,000 per year to the university to release me from some teaching obligations so that I could write and think about intelligent design issues.

Q And that happened for about five or six years, is that right?

A No, three years.

Q Three years, okay.

And in fact the Discovery Institute's Center for Renewal of Science and Culture heralded your work in a document it prepared called The Wedge Strategy, didn't it?

A I'll have to refresh my memory, but I think they did, yes.

MR. ROTHSCHILD: Matt, if you could put up 140.

May I approach the witness, Your Honor?

THE COURT: You may.


Q This is a document that you ve been aware of for some time?

A I heard about it. I wasn't aware about it until I heard about it being discussed on the Internet. Apparently somebody purloined this document, or took the document from the Discovery Center and posted it on the web, and there was a discussion of it then. That's when I became aware of it.

Q And you read it?

A Yes, I think I did after it came out.

Q And if you could turn six pages in, and it actually has handwriting that says page four on it. And you see there's a section called the "Five Year Strategic Plan Summary."

A Yes.

MR. ROTHSCHILD: If you could highlight that first paragraph there, Matt.


Q What it said here was, "The social consequences of materialism have been devastating. As symptoms, those consequences are certainly worth treating. However, we are convinced that in order to defeat materialism, we must cut it off at it's source. That source is scientific materialism. This is precisely our strategy. If we view the predominant materialist science as a giant tree, our strategy is intended to function as a wedge that, while relatively small, can split the trunk when applied at it's weakest points. The very beginning of this strategy, the thin edge of the wedge was Phillip Johnson s critique of Darwinism begun in 1991, in Darwinism on Trial, and continued in Reason in the Balance and Defeating Darwinism by Opening Minds. Michael Behe's highly successful Darwin's Black Box followed Johnson's work. We are building on this momentum, broadening the wedge with a positive scientific alternative to materialistic scientific theories, which has come to be called the theory of intelligent design. Design theory promises to reverse the stifling dominance of the materialist world view, and to replace it with a science consonant with Christian and theistic convictions."

You were aware of this passage in the document when you read it?

A I assume I did read it, yes, roughly at that point.

Q And you were aware that your work was described in this context?

A Yeah, I saw it mentioned there, yes.

Q Okay. And you were a fellow at the time you became aware of this document?

A That's correct. I did not -- I did not -- I was not aware of it before it was placed on the Internet. I don't know the source of the document, who wrote it, whether it was some -- somebody's draft of something, whether it was a fundraising letter, whether it was, you know, something else, but I did not know.

Q A strategy document? You don't know?

A I don't know, no. You know, again, if one doesn't see who wrote it, I don't know what to make of this.

If this was written by somebody who had no particular importance in the organization, or who had in mind something that would not, you know, be approved by people in charge or some such thing, then there was no particular reason to pay attention to it.

Q But you continued on as a fellow after seeing this?

A You bet I did. I -- you know, I very much enjoy my association with the Discovery Institute. I think that people associated with it are very helpful in my -- developing my ideas. And yes, I'm -- I place much value on my contacts there.

MR. ROTHSCHILD: Your Honor, I d just like to discuss one more exhibit with Professor Behe, and that might be a good time to break, and it will be brief.

THE COURT: After that?


THE COURT: All right, I'll let it to your discretion.

MR. ROTHSCHILD: Thank you.


Q You testified that you had been invited to write articles about intelligent design several times for The New York Times?

A I'm sorry?

Q You testified yesterday that you have been asked on several occasions to write articles for The New York Times.

A I was invited several times to contribute op-ed pieces on various news items -- or on various topics in the news at that time for The New York Times, yes.

Q And let me show you exhibit 723.

A Thank you.

Q This was an article you wrote in 1996?

A That's right. The occasion was that Pope John Paul II, had issued a letter to the Pontifical Academy of Sciences concerning evolution, and it was very much in the news at that point. And The New York Times had just reviewed my book earlier in the summer, and so they knew that I was a Catholic scientist and that I might be an appropriate person to write commentary on that event.

Q And in the second full paragraph, beginning, "I grew up," you write, "I grew up in a Catholic family and have also believed in God. But beginning in parochial school I was taught that He could use natural processes to produce life. Contrary to conventional wisdom, religion has made room for science for a long time. But as biology uncovers startling complexity in life, the question becomes, can science make room for religion."

That's what you wrote, correct?

A Yes, that's right.

Q And then you went on to discuss your proposition of intelligent design as set forth in Darwin's Black Box, correct?

A And if I could just say that by that phrase, "can science made room for religion," I had in mind reactions like that of John Maddox and that of Arthur Eddington and that of Walter Nernst, who were thinking that science necessarily had to rule out things whose philosophical or other implications did not disturb them.

Q And those names are nowhere in this article.

A I had, I think, 900 words to talk about this. So there are many many other things that I could have included in writing on the topic like this, which I did not have the room to do.

Q Big Bang was between the lines here.

A Actually, I mention the Big Bang as often as I can. I'm surprised I didn't have it in here.

Q Maybe we could take this as a precedent.

And if you could go to the second page. And the second to the last paragraph, you write, "Intelligent design may mean that the ultimate explanation for life is beyond scientific explanation. That assessment is premature. But even if it is true, I would not be troubled. I don't want the best scientific explanation for the origins of life; I want the correct explanation."

That's what you wrote, correct?

A I certainly did write that, and I think it's a quite reasonable statement.

The Big Bang might ultimately be beyond scientific explanation. We have no explanation for the Big Bang right now. Many people, including people who don't like it, see theological and philosophical implications in the Big Bang theory. I put intelligent design in the same category, as I've mentioned before in my testimony.

We do not have any unintelligent explanation for life. We don't have any current explanation. We don't rule it out, but ultimately we might not have one. And ultimately it might not have -- might not receive a scientific explanation. And if that's the case, well then that's the case, we just have to follow the evidence where it leads.

Q Just so we're clear, the Big Bang has been accepted by significant portions of the scientific community?

A That was about three decades or so after it was first discussed by George Lemaitre, a Belgium priest, who first proposed it based on observations of the red shift of the galaxies and apparent expansion of the universe. But for the first several decades it was extremely controversial and not well accepted.

Q But the answer is yes, it has been well accepted?

A After three decades it became accepted.

Q And intelligent design, now after several decades of it's modern era, has not been accepted, in fact, it's regularly rejected?

A Intelligent design certainly is not the dominant view of the scientific community, but I'm very pleased with the progress we're making. As I've tried to make clear in my testimony, although some -- many scientists do not like it, if you look at their statements, you do not see any scientific evidence which, when examined closely, is -- when examined closely, shows that intelligent design is incorrect.

Q Okay. It's not been well accepted or indeed accepted by anything but more than a small minority of scientists.

A Well, again, I'm afraid I'm -- I think the situation is a whole lot more complex than perhaps you do.

Statements of large scientific organizations do not represent the views of their members, other than -- much like statements of other organizations might represent all the views of all their members. And I think that if you actually surveyed a large number of scientists and you ask them carefully what they thought about how one could explain life, I think that a significant fraction would indeed say that something like intelligent design was plausible.

Q That's just speculation on your part?

A Well, it's based on some experience that I've had talking with scientists in many of these discussions that I have. Many scientists have misimpressions of intelligent design, and when they I speak with them, they oftentimes see that it's more -- has a more compelling argument than is oftentimes presented in publications, magazines, and so on. So it's based on some experience.

MR. ROTHSCHILD: This would be a good time to break, Your Honor.

THE COURT: Are you going to pick up more cross tomorrow?


THE COURT: All right. We'll recess then for the day at this point, the hour being almost at 4:30, and we will reconvene at 9 a.m. tomorrow and continue with Mr. Rothschild's cross examination of the witness.

We're in recess. Thank you.


(4:28 p.m., court adjourned.)


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